Top ten legal tips for your office Christmas party

Around 80% of British bosses will not organise an office party
this Christmas, in part due to legal hangovers from fighting and
flirting at past events. In a year when Wal-Mart tried to ban
"lustful glances" in the workplace, OUT-LAW suggests 10 tips for
those still eager to celebrate.06 Dec 2005

The finding that Christmas is cancelled comes from a survey of 3,500 businesses by Peninsula Business Services Ltd which also found that 89% of employers have received a harassment complaint after a work party. This blow to staff morale was surely compounded by reports like Wal-Mart's battle against office romance.

But employers and employees can enjoy an office party. And the secret to coping with the less savoury traditions associated with these events is good preparation.

Here are OUT-LAW's tips.

1. The invite

Do not insist that all staff attend the Christmas party. Christmas is a Christian holiday – so do not pressure someone to attend if they don't want to on the grounds of religion. If the event is out of hours, also remember that some people have family responsibilities that may prevent attendance.

If telling people to bring a Secret Santa gift, ask that all gifts are inoffensive. Some gifts – notably underwear and sex toys – have sparked complaints in the past.

2. Decorating the office

Use a stepladder to put up decorations – not a swivel chair, warned the Trades Union Congress (TUC) and the Royal Society for the Prevention of Accidents (RoSPA) recently. Don't hang the tinsel on computers or other sources of heat; and don't decorate emergency exit signs.

These organisations also warn that your insurance may not cover damage caused by untested electrical equipment – so switch off those tree lights before going home.

There are other festive hazards, according to the TUC/RoSPA guidance. Party balloons can kill: around 3.6 million people in Britain suffer from some degree of latex allergy. And over 1,000 people were injured by Christmas trees in 2002, so make sure they are secure and won't be knocked over by people passing by or pulling cables.

Some other tips: keep fresh party food in a fridge before the party; use paper cups, not glasses; move computers out of range of spillages; and avoid indoor fireworks, flaming puddings, candles and smoking.

3. Free booze

Employers providing free drink or putting a credit card behind a bar should be careful. In one case, three emplyees of the Whitbread Beer Company got drunk and had a fight after a seminar on improving behavioural skills. They successfully argued that their resulting dismissals were unfair. A relevant factor was that the employer had provided a free bar – and thus condoned their behaviour.

4. Age limits

Keep an eye out for the office junior. Bosses cannot allow under-18s to drink. In an extreme example, an employer was found responsible for the death of a girl at the office party due to alcohol poisoning.

5. Tables and photocopiers

Dancing on desks is likely to cause damage to property and people. It amounts to misuse of company property – as does the photocopying of body parts and other leisure activities on such surfaces. Make it clear that such activities will not be tolerated or that certain parts of the office are out of bounds on the night of the party.

6. Don't ignore drugs in the loos

Under the Misuse of Drugs Act of 1971, it is an offence for an employer to knowingly permit or even to ignore the use, production or supply of any controlled drugs, from cannabis to cocaine, taking place on their premises. There may also be a breach of the Health and Safety at Work Act 1974.

7. Misguided by mistletoe

Your staff policies on bullying and harassment and discrimination still apply at the office party. Just make sure everyone knows this and knows what they are.

This is one reason why mistletoe is dangerous. A survey reported by ContractorUK found that, while 80% of women would laugh off a pass made by a male co-worker, boss or client, 13% would lodge a complaint.

An extreme example of such misbehaviour involved a man telling a female colleague that she "needed a good man," adding that he would like to try her out in bed. At the Christmas party, the man pulled her dress down and made disparaging comments. A claim of sexual harassment succeeded and an award of £10,000 was made for injury to feelings.

The laws on discrimination apply at the office party regardless of location. So when one man told a female colleague, "f****** hell, you look worth one" at an after-work leaving event taking place in a local pub, the tribunal had little difficulty in ruling that it was in the course of employment and therefore discriminatory.

Employers can find that they end up paying for unwanted advances between co-workers if tribunals characterise the behaviour as evidence of a culture of vicimisation or harassment.

Sometimes misconduct will be clear. In one case, a senior manager drank heavily at the Christmas party, assaulted some colleagues and told the director to "stick his f****** job up his arse." He was thrown out and broke the window of a pensioner's house. Perhaps unsurprisingly, his claim for unfair dismissal failed. But don't overlook the behaviour of others. For example, if your party budget extends to an after-dinner speaker, choose carefully. When Bernard Manning performed for one company, the host hotel was deemed liable for the offence caused to Afro-Caribbean waitresses by Manning's racist jokes.

8. Manage expectations

Alcohol makes people say silly things so always avoid staff performance reviews during the office party. In one case, an employee claimed his boss had promised him a higher salary "in due course" during a chat at the Christmas party. His pay remained static so he quit and claimed constructive dismissal. The employer won the case but only because the nature of the promise was vague. It was a lucky escape: a promise made at a Christmas party is still a promise.

A similar issue is the Christmas bonus. If you have paid a discretionary Chritmas bonus for several years, staff can argue that it has become contractual through custom and practice. So if times have been tough and you can't afford to pay a bonus this year, tell staff why you feel unable to pay it and try to agree a solution. Acas suggests that you could offer to pay a proportion of the bonus or stagger payments in the next few months; or you could offer to pay the drinks bill at the Christmas party.

9. Getting home

If a member of staff has clearly drunk too much at the office Christmas party and plans to drive home, the employer needs to take responsibility. Acas points out that he has a duty of care to his employees – and because it's the company's party, he must think about travel arrangements. Consider ending the party before public transport stops running; or provide the phone numbers for local cab companies and encourage staff to use them.

10. The morning after

If the party is mid-week and people are expected in work the next day, Acas recommends that you provide plenty of non-alcoholic drinks and food. Before the party, ensure that all staff know that disciplinary action could be taken if they fail to turn up for work because of over-indulging.

Liquid lunches are another risk. If there is urgent work to be done, disciplinary action may be appropriate if staff are late back to the office or intoxicated. But bosses must be careful: a history of festive tolerance could be used as evidence that disciplinary action against an individual is unfair.

Also ensure that proper procedures are followed. At an Ardyne Scaffolding Christmas lunch in the early 1990s, a worker returned a few hours late to work after drinking too much. It was the day before the Christmas holiday was due to begin. Ardyne Scaffolding saw this as gross misconduct but decided to tell the employee after he had sobered up – which meant waiting until after the Christmas holiday. The worker learned of the dismissal through gossip during the holiday and claimed unfair dismissal. He won. The Employment Appeals Tribunal decided that, while it was reasonable to wait for Mr Rennie to sober up before being told that he would be dismissed, and while the holiday had complicated matters, this did not justify a failure to follow a clear procedure.

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